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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Coos Nos. 2009-017 2009-018 CHARLES KALIL & a. v. TOWN OF DUMMER ZONING BOARD OF ADJUSTMENT CHARLES KALIL & a. v. TOWN OF DUMMER Argued: September 24, 2009 Opinion Issued: February 11, 2010 Cooper Cargill Chant, P.A., of North Conway (Randall F. Cooper on the brief and orally), for the plaintiffs. Gallagher, Callahan & Gartrell, P.C., of Concord (R. Matthew Cairns and Erik G. Moskowitz on the brief, and Mr. Cairns orally), and Gardner, Fuller & Waugh, of Lebanon (H. Bernard Waugh on the brief), for the defendants.

DALIANIS, J. In these consolidated appeals, the plaintiffs, Charles and Brenda Kalil, contest two orders of the Superior Court (Vaughan, J.). In one, the court granted the motion to dismiss filed by defendant Town of Dummer (Town) on the ground that res judicata barred the plaintiffs' writ alleging an inverse condemnation claim. In the other, the court denied the plaintiffs' motion to amend their appeal of the denial of their variance request to add an inverse condemnation claim. We affirm. This is the second appeal involving the plaintiffs' land in Dummer. See Kalil v. Town of Dummer Zoning Bd. of Adjustment, 155 N.H. 307 (2007). The following facts are taken from Kalil, or are evidenced in the record. The plaintiffs own land located in both the Town's conservation and conservation overlay zones. Kalil, 155 N.H. at 309. In 2004, they applied for building permits to construct a barn, a bird barn with flying pen, and a farmhouse. Id. When this application was denied, they appealed to defendant Town of Dummer Zoning Board of Adjustment (ZBA), and, at the same time, sought a variance from the ZBA to construct a fish and game farm that would include the barn, bird barn and farmhouse. Id. After a hearing, the ZBA denied both the building permit appeal and the plaintiffs' request for a variance. Id. The plaintiffs appealed to superior court, which ruled that the ZBA's decision was "under developed," and, therefore, remanded the matter to the ZBA for further proceedings. Id. We affirmed the superior court's decision to remand the variance request to the ZBA for it to clarify its decision based upon the pre-existing record. Id. at 312-13. We remanded the building permit appeal to the superior court for it to "either address the merits of the issues surrounding the building permits or explain why it is reserving its decision upon those issues." Id. at 313. Upon remand, the trial court ruled that the building permits were properly denied. Upon review of the ZBA's report clarifying its earlier decision to deny the plaintiffs' variance request, the trial court affirmed the ZBA's decision. The plaintiffs moved for reconsideration, arguing that, without a variance, they "will be substantially deprived of the economically viable use of their land." See Burrows v. City of Keene, 121 N.H. 590, 598 (1981). The trial court denied the plaintiffs' motion. The plaintiffs did not appeal. Shortly thereafter, the plaintiffs filed a new writ, seeking damages for alleged inverse condemnation arising from the ZBA's denial of their variance request. The Town raised res judicata as a defense in its summary statement, filed August 8, 2008, but failed to raise it as a defense in its July 23, 2008 brief statement of defenses. In response to the plaintiffs' motion to preclude res judicata as a defense, the Town moved to amend its brief statement of defenses, which the trial court granted. Thereafter, the Town moved to dismiss the plaintiffs' new writ on res judicata grounds. 2

In October 2008, before the court had ruled upon the Town's motion to dismiss, the plaintiffs moved to amend their original appeal of the ZBA's variance decision to add an inverse condemnation claim. The trial court granted the Town's motion to dismiss and denied the plaintiffs' motion to amend. These consolidated appeals followed. The plaintiffs first argue that the trial court erred by allowing the Town to raise res judicata as an affirmative defense. Relying upon Superior Court Rule 28, they assert that "as of July 31, 2008, the defendant, through its attorneys, had actual notice of [the] defense of res judicata and failed to file in a timely manner [a pleading that raised] that affirmative defense, thereby waiving the same as a matter of law." Superior Court Rule 28 provides: All special pleas and brief statements shall be filed within thirty days following the return date of the writ; otherwise the cause shall be tried upon the general issue. Failure to plead affirmative defenses, including the statute of limitations, within this time will constitute waiver of such defenses. No brief statement or special plea shall be afterwards received except by leave of court as justice may require. Here, the plaintiffs' writ was returnable on the first Tuesday of July 2008. Within thirty days of this period, the Town filed its brief statement of defenses, but neglected to include res judicata as an affirmative defense. Eight days after the thirty-day period expired, however, the Town raised res judicata as a defense and, thereafter, sought leave to amend its statement of defenses to include this defense. Although pursuant to the literal terms of Superior Court Rule 28, the Town may have waived its affirmative defense of res judicata, Superior Court Rule 28 grants the trial court authority to allow late filing of such a defense "as justice may require." Additionally, under the Preface to the Superior Court Rules, the trial court may waive the application of any rule "[a]s good cause appears and as justice may require." See RSA 514:9 (2007) ("Amendments in matters of substance may be permitted in any action, in any stage of the proceedings, upon such terms as the court shall deem just and reasonable, when it shall appear to the court that it is necessary for the prevention of injustice."). Accordingly, the question before us is whether the trial court erred when it determined that justice required allowing the Town to amend its brief statement of defenses. Amendment of pleadings is liberally permitted, and the decision to grant or deny a motion to amend rests in the sound discretion of the trial court. Dent v. Exeter Hosp., 155 N.H. 787, 796-97 (2007); see Attorney General v. 3

Morgan, 132 N.H. 406, 408 (1989). We will not overturn that decision unless it is an unsustainable exercise of discretion. Dent, 155 N.H. at 797. The party asserting that a trial court's order is unsustainable must demonstrate that the ruling was unreasonable or untenable to the prejudice of its case. Foley v. Wheelock, 157 N.H. 329, 332 (2008). Given our emphasis upon justice over procedural technicalities, see Whitaker v. L.A. Drew, 149 N.H. 55, 59 (2003), we are unable to conclude that the trial court unsustainably exercised its discretion by allowing the Town to amend its brief statement. The record reveals that on August 8, 2008, only eight days after the thirty-day period expired, the Town alerted the plaintiffs to its intent to raise res judicata as an affirmative defense. The plaintiffs have failed to demonstrate any prejudice resulting from this brief delay. Under these circumstances, the trial court reasonably could have determined that justice required allowing the Town to amend its brief statement. The plaintiffs next assert that the trial court erroneously denied their motion to amend their original appeal of the ZBA's denial of their variance request to add an inverse condemnation claim. We find no error in the trial court's decision. The plaintiffs sought to amend their original appeal of the ZBA's denial of their variance long after the trial court's decision in the appeal had become a final judgment on the merits. The trial court issued its final order in the ZBA appeal on April 15, 2008. This order became a final judgment thirty-one days later. See Super. Ct. R. 74. The plaintiffs, however, did not move to amend their appeal until nearly six months after the judgment became final. By that time, "the trial court's power to allow amendment . . . [had] ceased." Arsenault v. Scanlon, 139 N.H. 592, 594 (1995). Accordingly, its denial of the plaintiffs' motion to amend their original appeal was not an unsustainable exercise of discretion. The plaintiffs next contend that the trial court erred when it dismissed their new writ on res judicata grounds. "The applicability of res judicata is a question of law that we review de novo." Sleeper v. Hoban Family P'ship, 157 N.H. 530, 533 (2008). "Res judicata precludes the litigation in a later case of matters actually decided, and matters that could have been litigated, in an earlier action between the same parties for the same cause of action." Id. The doctrine applies when three elements are met: "(1) the parties must be the same or in privity with one another; (2) the same cause of action must be before the court in both instances; and (3) a final judgment on the merits must have been rendered in the first action." Id. The plaintiffs argue that res judicata does not apply because their appeal from the denial of a variance request is not the same cause of action as their inverse condemnation claim.

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The plaintiffs acknowledge that in Shepherd v. Town of Westmoreland, 130 N.H. 542, 544 (1988), we squarely addressed this issue. There, the plaintiff appealed a zoning board's denial of a variance, and the superior court upheld the board's decision. Shepherd, 130 N.H. at 543. The plaintiff did not appeal the ruling of the superior court, but instead filed a petition for declaratory judgment, "alleging that the zoning ordinance [was] unconstitutional as applied to her and that the denial of a variance amounted to an inverse condemnation of her land." Id. The defendant argued that because the plaintiff had the opportunity, but failed to litigate her inverse condemnation claim on appeal of the zoning board's denial of her variance request, she was precluded from raising this claim in the present petition. Id. at 544. We agreed. Id. at 544-45. In addressing whether res judicata barred the plaintiff's inverse condemnation claim, we relied upon Eastern Marine Construction Corp. v. First Southern Leasing, 129 N.H. 270, 274, 275 (1987), in which we embraced the modern trend "to define cause of action collectively to refer to all theories on which relief could be claimed on the basis of the factual transaction in question," and "reject[ed] the view that the term is synonymous with the particular legal theory in which a party's claim for relief is framed." See Sleeper, 157 N.H. at 534; Restatement (Second) of Judgments

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